He gave evidence yesterday in his action alleging Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty “clearly disregarded” the constitutional separation of powers between parliament and the courts in their statements.
He also claims the Dáil Committee on Procedure and Privileges (CPP) failed to “properly police” the TDs over their statements made respectively in May and June 2015, when he had ongoing proceedings against RTÉ, seeking to restrain it publishing his banking details.
At the outset of his evidence, Mr O’Brien provided a written statement to Ms Justice Úna Ní Raifeartaigh which referred to his case against RTÉ and a separate case against Red Flag Consulting.
It also referred to his having received death threats on May 31, 2015, including via an email where the sender outlined a “chilling fantasy” about “slitting my throat”.
Another threat was from a man who described himself as a former member of the French Foreign Legion who, referring to a photo of Mr O’Brien on Facebook, posted a comment: “I’m pretty good with a sniper rifle and this c**t’s got a big head.”
He did not know what prompted those threats and was not suggesting any TDs were involved in them, Mr O’Brien said.
It was important for an individual and for a country’s reputation that banking details remain confidential, he said. His concern was, despite having taken proceedings to prevent publication by RTÉ of his banking affairs, details of those were outlined in the Dáil.
“As an individual and citizen, I want the court to determine whether a court order can be relied on or whether someone can get up across the city and unravel that.
“I thought if you got a High Court order, that would not then be unravelled by another arm of the State, in this case the Oireachtas. I would have thought members of the Oireachtas would respect the High Court and the order granted.”
In cross-examination by Michael Collins, counsel for the CPP, and Maurice Collins, for the State, he was asked whether he has ruled out suing the TDs themselves and said it was “probably unlikely”.
He said the TDs had acted maliciously and recklessly, had disrespected court orders and the court should deplore what they did.
The point of his case is not to have all Dáil deputies “learn a lesson” but to have them “respect” what happens in court and he wants the court to determine whether TDs can breach court orders.
He accepted an injunction obtained by him on May 21, 2015, which restrained RTÉ publishing his details did not apply to the TDs.
When Maurice Collins put to him the purpose of his action was to punish the two TDs and “restrict Dáil speech”, Mr O’Brien said counsel was trying to make victims of the two TDs when he, Mr O’Brien, was the one “wronged” as his confidential banking details were released into the public domain.
He disagreed what he was seeking was “punitive” and said it was not “harshly punitive”. He hoped if he was successful, this would never happen again and “will change things for the future.”
Asked why a court “reproof” was different from a reproof from the CPP, he said the two TDs “knew exactly” what they were doing.
He had complained to the CPP and, when it dismissed his complaints, “obviously we took these proceedings”.
Even if the CPP endorsed his complaint, he would have taken legal proceedings and part of the reason for this case was to get some form of judicial disapproval for what the TDs did, he agreed.
Asked by Michael Collins if he wanted the court to lay down a “marker” for TDs as to what they can and cannot say in the Dáil, he said that “may be very wide”.
He said, if a citizen has a court order, a TD cannot intervene, and the court should lay down a line beyond which they cannot go. He hoped, if he won this case, people’s privacy would be respected and their private banking matters would not be ventilated in the Dáil. It could be someone’s medical records the next time, he said.
The case continues today.